IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CARLOS M. HARDIMAN,

Plaintiff,

 Civil Action 2:12-cv-508

v. Judge Michael H. Watson

 Magistrate Judge Elizabeth P. Deavers

 

COMMISSIONER OF SOCIAL SECURITY,

Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, Carlos M. Hardiman, brings this action under 42 U.S.C. § 405(g) for review of a

final decision of the Commissioner of Social Security (“Commissioner”) denying his application

for social security disability insurance benefits and supplemental security income. This matter is

before the United States Magistrate Judge for a Report and Recommendation on Plaintiff’s

Statement of Errors (ECF Nos. 10 and 11), the Commissioner’s Memorandum in Opposition

(ECF No. 16), Plaintiff’s Reply (ECF No. 17), and the administrative record (ECF No. 9). For

the reasons that follow, it is RECOMMENDED that the Court REVERSE the Commissioner of

Social Security’s nondisability finding and REMAND this case to the Commissioner and the

ALJ under Sentence Four of § 405(g).

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I.

A. Background

Plaintiff filed his application for social security disability insurance benefits under Title

II of the Social Security Act on October 6, 2008, at age 40. He also filed a Title XVI application

for supplemental security income on January 9, 2009. (R. at 13, 140–46.) Plaintiff met the

financial requirements for disability insurance benefits eligibility through June 30, 2010. 

Plaintiff alleges disability as a result of his crushed left foot and his difficulties reading and

writing. Plaintiff’s application was denied initially and upon reconsideration. Plaintiff sought a

de novo hearing before an administrative law judge. Administrative Law Judge J. Richard

Stables (“ALJ”) held a hearing in November 2010, at which Plaintiff, represented by counsel,

appeared and testified. (R. at 53–81.) Dr. Hermona Robinson, a vocational expert (“VE”), also

appeared and testified at the hearing. (R. at 76–79.) In February 2012, the Appeals Council

denied Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final

decision. (R. at 1-4.) Plaintiff then timely commenced the instant action. 

In his Statement of Errors, Plaintiff advances three assertions of error. Plaintiff first

contends that the ALJ erred in his consideration or lack of consideration of Listing § 1.03. 

Within this contention of error, Plaintiff submits that the ALJ’s conclusion that he did not meet

Listing § 1.03 is internally inconsistent with limitations the ALJ incorporated into his RFC

relating to ambulation. Plaintiff maintains that he meets Listing § 1.03 because he is unable to

ambulate effectively as defined in 20 C.F.R Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b). Plaintiff

next asserts that the ALJ erred in failing to include mild mental retardation as a severe mental

impairment. Finally, Plaintiff posits that the ALJ erroneously characterized him as having a

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“limited education,” where the evidence established that he was illiterate. (Pl.’s Statement of

Errors 2, ECF No. 10.)

The Undersigned finds Plaintiff’s first assignment of error to be well taken. This finding

obviates the need for in-depth analysis of Plaintiff’s remaining assignments of error. Thus, the

Undersigned need not, and does not, resolve the alternative bases Plaintiff asserts support

reversal and remand. Accordingly, the Undersigned will now focus its review of the record on

evidence relevant to Plaintiff’s first contention of error. 

B. Relevant Hearing Testimony

At the November 29, 2010 hearing, Plaintiff testified that he crushed his left foot during a

fall in 1996. (R. at 66, 67.) He indicated that he had surgery on December 1, 2009, because his

foot had progressively gotten worse since the fall. In this surgery, doctors put artificial bones

and pins and his foot and also did a bone fusion. (Id.) Plaintiff testified that the surgery

worsened his condition because his ankle is now more painful, stiff, and likely to lock up. (R. at

68.) 

At the time of the hearing, Plaintiff wore a rigid brace around his foot and ankle. (Id.) 

Plaintiff testified that he utilizes a cane to walk because he frequently loses his balance. (R. at

68.) He explained that his foot gives out if he steps on little rocks or pebbles. He added that he

cannot walk more than two blocks due to pain. Plaintiff indicated that with his cane, he could

stand ten minutes at a time, but could not navigate stairs. His aunt, with whom he lives, installed

a handicap ramp for him. (Id.) His foot always aches and throbs if he puts it down on the

ground too long. (R. at 69.) Plaintiff testified that his doctor wants to do an additional surgery

to fuse the remainder of his foot. (R. at 70.) 

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C. Relevant Medical Records

Plaintiff received treatment for his left foot and ankle from the pysicians at Mount

Carmel Hospital from August 2009 through October 2010. (R at 257–70, 372–98.) On

December 1, 2009, Plaintiff underwent a subtalar arthrodesis, a surgery that fused his subtalar

joint and fixed it with screws. The post-operative x-ray documented two pins in his ankle. (R. at

399.) 

At a March 10, 2010 visit, Plaintiff reported continued pain, but indicated that he was

able to “get around” without his walker boot and that his foot fits into normal shoes. (R. at 263.) 

Plaintiff further reported that he was ambulating better than he had been, but that he continued to

need a cane. (Id.) 

At an October 2010 visit, Plaintiff reported intermittent chronic pain that worsened

during weight bearing. (R. at 257.) Upon physical examination, Roger E. Wiltfong, M.D.,

documented significant tenderness and observed that palpating certain areas caused Plaintiff to

recoil in pain. (Id.) Dr. Wiltfong opined that the pain was likely caused by a compression of the

peroneal nerves and that a less likely cause could be an infection. (Id.) Dr. Wiltfong indicated

that Plaintiff needed to obtain a computed tomography scan (“CT scan”) and a left ankle

immobilizer. (R. at 257–59.) He added that Plaintiff’s treatment plan would be further revised

upon receipt of the CT scan results. (R. at 259.) 

D. The Administrative Decision

On January 20, 2011, the ALJ issued a decision finding that Plaintiff was not disabled

within the meaning of the Social Security Act. (R. at 13–21.) The ALJ found that Plaintiff had

the following severe impairments: crushed left foot/ankle injury; major depressive disorder;

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generalized anxiety disorder; and alcohol dependance. (R. at 15.) He further found that Plaintiff

did not have an impairment or combination of impairments that met or medically equaled one of

the listed impairments. (R. at 16.) The ALJ explicitly noted that he considered the following

Listings: 1.02 (major dysfunction of a joint); 1.06 (fracture of one or more of the tarsal bones);

12.04 (affective disorders); 12.06 (anxiety related disorders); and 12.09 (substance addiction

disorders). (Id.) With regard to the Listings 1.02 and 1.06, in terms of discussion, the ALJ

stated as follows: 

An October 2010 treatment record from Mount Carmel Hospital shows that

Plaintiff was able to walk using a custom-made orthotic in the left shoe and a cane. 

Hence, the evidence does not show that he has an inability to ambulate effectively

as it is defined in Section 1.00B(2)(b).

(Id.) The ALJ set forth Plaintiff’s residual functional capacity (“RFC”) as follows: 

After careful consideration of the entire record, I find that the claimant has

the residual functional capacity to perform sedentary work as defined in 20 CFR

404.1567(a) and 416.967(a) except that he must use a cane to walk, wear a brace on

his left ankle that causes the appendage to be rigid, avoid rough or uneven ground,

and walk slowly and carefully. He can squat, crawl, and climb stairs or ramps only

occasionally. He should never climb ladders, ropes, or scaffolds. He cannot operate

foot controls with the left lower extremity, read, or perform detailed or complex

tasks. The claimant’s abilities to adapt to stresses and change and interact with the

public, coworkers, and supervisors are moderately limited. He should avoid

situations that involve intensive interaction, fast-paced or frequent change, and high

production demand. 

 

(R. at 17 (emphasis added).) Relying on the VE’s testimony, the ALJ concluded that Plaintiff

was unable to perform his past relevant work, but that he would be able to make a successful

adjustment to other work that exists in significant numbers in the local, state, and national

economy. (R. at 19–21.) He therefore found that Plaintiff was not disabled under the Social

Security Act. (R. at 21.) 

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II. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Ullman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42

U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if

supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial

evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th

Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Univ. Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)). “When deciding under 42 U.S.C. § 405(g) whether substantial evidence supports the

ALJ's decision, [the court does] not try the case de novo, resolve conflicts in evidence, or decide

questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). Finally, even if

the ALJ’s decision meets the substantial evidence standard, “‘a decision of the Commissioner

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will not be upheld where the SSA fails to follow its own regulations and where that error

prejudices a claimant on the merits or deprives the claimant of a substantial right.’” Rabbers v.

Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen, 478 F.3d 742, 746 (6th

Cir. 2007)).

III. ANALYSIS

The Undersigned concludes that remand is necessary because the ALJ’s decision is

materially inconsistent and incomplete. It is unclear whether the ALJ considered Listing § 1.03

given that he did not identify it as one of the listings he specifically considered. (See R. at 16.) 

He did, however, identify Listing §§ 1.02 and 1.06, which, like Listing § 1.03, require a finding

that the claimant has an “inability to ambulate effectively” as defined in 20 CFR Pt. 404, Subpt.

P, App. 1 § 1.00B(2)(b). (Id.) Based upon the limited discussion he offered, it appears that the

ALJ relied upon the October 2010 treatment record from Mount Carmel Hospital to conclude

that Plaintiff did not meet Listings §§ 1.02 and 1.06 because he did not have an “inability to

ambulate effectively.” (Id.) This determination, however, is internally inconsistent with the

restrictions he set forth in his subsequent RFC determination. Further, the October 2010

treatment record is not substantial evidence supporting the ALJ’s determination. 

 “At step three of the evaluation process, it is the burden of the claimant to show that he

[or she] meets or equals the listed impairment.” Thacker v. Soc. Sec. Admin., 93 F. App’x 725,

727–28 (6th Cir. 2004). Accordingly, “[w]hen a claimant alleges that he [or she] meets or equals

a listed impairment, he [or she] must present specific medical findings that satisfy the various

tests listed in the description of the applicable impairment or present medical evidence which

describes how the impairment has such equivalency.” Id. at 728. The United States Court of

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Appeals for the Sixth Circuit has emphasized that ALJ’s are not subject to a “heightened

articulation standard” in considering the listing impairments. Bledsoe v. Barnhart, 165 F. App’x

408, 411 (6th Cir. 2006). Instead, the Court simply reviews whether substantial evidence

supports the ALJ’s findings. See id.

Listing § 1.03 specifically requires, “[r]econstructive surgery or surgical arthrodesis of a

major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and

return to effective ambulation did not occur, or is not expected to occur, within 12 months of

onset.” 20 C.F.R. 404, Subpt. P, App. 1 § 1.03 (emphasis added). The regulations describe

inability to ambulate effectively as follows:

Definition. Inability to ambulate effectively means an extreme limitation of the

ability to walk; i.e., an impairment(s) that interferes very seriously with the

individual’s ability to independently initiate, sustain, or complete activities.

Ineffective ambulation is defined generally as having insufficient lower extremity

functioning (see 1.00J) to permit independent ambulation without the use of a

hand-held assistive device(s) that limits the functioning of both upper extremities.

20 CFR Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b). The regulations further provide:

To ambulate effectively, individuals must be capable of sustaining a reasonable

walking pace over a sufficient distance to be able to carry out activities of daily

living. They must have the ability to travel without companion assistance to and from

a place of employment or school. Therefore, examples of ineffective ambulation

include, but are not limited to, the inability to walk without the use of a walker, two

crutches or two canes, the inability to walk a block at a reasonable pace on rough

or uneven surfaces, the inability to use standard public transportation, the inability

to carry out routine ambulatory activities, such as shopping and banking, and the

inability to climb a few steps at a reasonable pace with the use of a single hand rail.

The ability to walk independently about one’s home without the use of assistive

devices does not, in and of itself, constitute effective ambulation.

Id. (emphasis added). 

Based upon the examples proffered above, the ALJ’s step three determination that

Plaintiff retains the capacity to ambulate effectively appears to be at odds with his subsequent

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RFC determination that Plaintiff must use a cane to walk, wear a brace on his left ankle that

causes the appendage to be rigid, and avoid rough or uneven ground, and walk slowly and

carefully. (R. at 17 (emphasis added).) See Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 155

(6th Cir. 2009) (A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the

physical and mental limitations resulting from her impairments.” ); see also 20 C.F.R. §§

404.1545(a), 416.945(a) (same). 

In addition, the October 2010 treatment record upon which the ALJ relies does not

support his determination that Plaintiff can ambulate effectively as contemplated in § 1.00B2b. 

That record contains a only passing reference relating to ambulation: “[Plaintiff] does have a

custom made orthotic in the left shoe, which he does say has helped with his pain in addition to a

cane that he uses to ambulate.” (R. at 257.) This record, however, does not elucidate whether or

not Plaintiff could ambulate effectively as contemplated in § 1.00B2b. Further, no medical

source offered an opinion regarding Plaintiff’s ability to ambulate effectively after his surgery. 

On this point, however, Plaintiff testified that his condition worsened after the surgery such that

even using a cane and a rigid brace, his foot gives out if he steps on little rocks or pebbles and

that he cannot walk more than two blocks due to pain. (R. at 68.) The ALJ found this testimony

credible, incorporating the restriction that Plaintiff “avoid rough or uneven ground, and walk

slowly and carefully” into his RFC determination. (R. at 18.) For these reasons, the

Undersigned cannot conclude that substantial evidence supports the ALJ’s step three

determination. 

 In sum, the Undersigned concludes that the ALJ’s decision is internally inconsistent and

incomplete. Remand is appropriate so that the ALJ consider whether Plaintiff can satisfy all of

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the requirements of Listing § 1.03, including the twelve-month durational requirement. See

Faucher v. Sec’y of Health and Hum. Servs., 17 F.3d 171, 176 (6th Cir. 1994) (“[T]he court can

reverse the decision and immediately award benefits only if all essential factual issues have been

resolved and the record adequately establishes a plaintiff’s entitlement to benefits.”); Straight v.

Colvin, No. 1:12-cv-2208, 2013 WL 1947244, at *8 (N.D. Ohio April 19, 2013) (remanding

where the ALJ’s listings determination at step three was internally inconsistent with this step two

findings). 

IV.

Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to

the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g). 

Accordingly, it is RECOMMENDED that the Court REVERSE the Commissioner of Social

Security’s non-disability finding and REMAND this case to the Commissioner and the ALJ

under Sentence Four of § 405(g) for further consideration consistent with this Report and

Recommendation. 

 PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

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Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

Date: July 16, 2013 /s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers

United States Magistrate Judge

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